Federated Storemen & Packers Union of Australia, Re; Wooldumpers (Vic) Ltd, Ex p [1989] HCA 10

Federated Storemen & Packers Union of Australia, Re; Wooldumpers (Vic) Ltd, Ex p [1989] HCA 10 - HCA 1988 case summary — Zoe

[53]

Conciliation and arbitration have as important roles to play in preserving interstate industrial peace in areas where it exists as in restoring it in areas where differing interests or aspirations, or local differences or disputes have degenerated to a stage where interstate industrial dispute and disruption have occurred or are pending. The grant of legislative power contained in s. 51(XXXV) of the Constitution plainly recognizes that that is so. Its emphasis is as much upon conciliation and arbitration for the "prevention" of interstate "industrial disputes" in the abstract as it is upon conciliation and arbitration for the "settlement" of particular identified interstate "industrial disputes" which have actually broken out. Obviously, the most effective way in which the processes of conciliation or arbitration can prevent the occurrence of interstate industrial disputes is by the conciliation of differences before the threshold of actual dispute is reached or, if actual dispute has broken out, by resolving it by conciliation or arbitration before it assumes an interstate character. Yet the Conciliation and Arbitration Act 1904 Cth ("the Act"), presumably reflecting a constricted view of the scope of the legislative power conferred by s. 51(XXXV) particularly in relation to conciliation, firmly bases the jurisdiction of the Australian Conciliation and Arbitration Commission ("the Commission") upon the identification of some specific interstate industrial dispute which has at least progressed to the stage of being "threatened", "impending", "probable" or "likely" and in respect of which a determination can be made of both "the matters in dispute" and "the parties": the Act, ss. 4(1) (definition of "Industrial dispute") and 24(1). This gives rise to the paradox that access to the national tribunal entrusted with conciliation and arbitration for the prevention of interstate industrial disputes (the Act, s. 18) is barred unless the potential disputants become qualified to invoke jurisdiction by exacerbating their differences to the stage where there is an actual, threatened, impending, probable or likely specific identified dispute of interstate proportions. The need to accommodate this paradox has led to the development of the stratagem of the "paper dispute".

[54]

The ordinary paper dispute (i.e. that arising from rejection or failure to accede to the demands of a log of claims served by a national union of employees upon a national organization of employers) serves to identify both the existence of a subject-matter appropriate to attract the exercise of arbitration powers and the parties to actual or potential dispute. Otherwise, it is not apparent to me that it serves any essential constitutional purpose. If the Constitution means what it says when it confers a broad power to make laws with respect to conciliation and arbitration for the prevention of interstate industrial disputes in the abstract, it is far from evident either that there is any constitutional need to make the manufacture of an interstate dispute, whether paper or real, a condition of the existence of jurisdiction conferred pursuant to that grant of legislative power or that it would not suffice for constitutional purposes if, e.g., the grant of jurisdiction to an expert tribunal such as the Commission were merely conditioned upon the opinion of the tribunal that circumstances exist in which the tribunal's conciliation or arbitration procedures may be conducive to the prevention of interstate industrial disputes. In that regard, it is difficult to see why s. 51(XXXV) of the Constitution, with its equal emphasis on prevention and settlement, is not sufficiently wide and flexible to take account of the close interaction and interdependence of almost all industrial relations between employees and employers in modern Australia by reason of, among other things, the ease of communications and the dominance of national organizations or confederations of employees and employers either in a particular industry or industries or generally. Indeed, even before 1900, the increasing interaction and interdependence of industrial relations in the various Colonies and the need for conciliation and arbitration at an early stage to prevent a local dispute escalating into an intercolonial one was surprisingly well appreciated. The point is readily illustrated by the following short references to the Convention Debates. Recourse cannot, of course, be had to the records of those Debates for the purpose of substituting for the meaning of the words of s. 51(XXXV) the scope and effect which the founding fathers subjectively intended the sub-section to have. As was pointed out in Cole v. Whitfield [39] , however, it is legitimate to refer to them for the purpose of identifying the contemporaneous meaning of language used and the subject to which that language was addressed.

[56]

We all admit, I imagine, that these industrial troubles do not belong to one colony alone. Labour has federated, and capital has federated, throughout the colonies, and the experience of the late strike shows most unmistakably, or, at all events, shows us in South Australia, that a strike may be ordered from New South Wales and that our people will obey the order; . Six years later, at the 1897 Adelaide Convention, Mr. Higgins, in proposing the addition of what was (in an expanded form) to become s. 51(XXXV), remarked: It may be said, "Leave the industrial disputes to the States"; but it is well known that these disputes are not confined in their evils to any one State. If there is a shipping dispute in Sydney it is sure to be felt in Melbourne; if there is a coal dispute in Newcastle it is sure to be felt at Korumburra. Any one State is unable to cope with the difficulty. If it should hereafter be found expedient to have a Court of Conciliation and Arbitration, it must be a Federal Court which can extend its power over the whole Federation. As Australia is so isolated from the other countries of the world by sea, it would be eminently apt to have a Federal Court of Conciliation and Arbitration for the purposes of Australia. The following year, at the Melbourne Convention, Mr. Higgins, in moving for the inclusion of s. 51(XXXV) in its present words, drew attention to the significance of the involvement of national organizations of employees and employers: Suppose you have a dispute of shearers. You have an organization of shearers all through Australia - an organization extending through Queensland, South Australia, Victoria, and New South Wales; and, on the other hand, you have the employers of the shearers all uniting on the opposite side. How, I say, can any state deal with a dispute of that nature which is intercolonial? Mr. Trenwith pointed to the increasing interdependence of industrial relations in the various colonies: In consequence of the continually increasing complexity of our industrial system there scarcely ever happens an industrial dispute of any magnitude, at any rate in the colonies, without it spreads its effect over the borders of two or three, and sometimes of all the colonies. In the same debate, other speakers pointed to the desirability that "trouble be nipped in the bud" (Mr. Kingston) and that dispute be stopped "in its early stages" (Mr. Howe).

[60]

It is not necessary for the purposes of the present case to examine the extent to which the nature of the functions of conciliation and arbitration confines the scope of both the legislative power contained in s. 51(XXXV) of the Constitution and the jurisdiction conferred upon the Commission by the Act. Plainly, in the present case, there existed a dispute susceptible of resolution by arbitration. It arose from the dismissal by a Victorian company ("Wooldumpers") of one of its employees (Mr. King). If that dispute is seen as between Wooldumpers and Mr. King, the dispute is of a local character. To view the dispute as merely one between Wooldumpers and Mr. King would, however, be to ignore the factual context of the dispute and to distort its scope. Mr. King is a member of The Federated Storemen and Packers Union of Australia ("the Union") which is a national organization of employees. He had, for some eight years, been the Union's delegate at the work place where he was employed by Wooldumpers as a storeman. For its part, Wooldumpers is a member of the Australian Wool Selling Brokers Employers Federation ("the Federation") which is a national organization of employers. The dispute between Wooldumpers and its dismissed employee has already escalated into a dispute between those national organizations. The proceedings before the Commission were actually initiated by the Union, representing Mr. King's interests. Wooldumpers' interests were represented by Mr. Purvis, the Director of the Federation. The Union demands, and Wooldumpers and the Federation resist, Mr. King's reinstatement. In addition, Mr. King's dismissal must be viewed in the context of an existing interstate paper dispute to which both the Union and the Federation are parties arising from the Federation's failure to accede to a log of claims in which the Union demands, among other things, that employment in the relevant industry be permanent and be not terminated without the Union's prior consent. Mr. King's dismissal was without prior consultation with, let alone the consent of, the Union. If, in these circumstances, Mr. Commissioner Caesar had determined under s. 24(1) of the Act that there had arisen either an interstate industrial dispute between nation-wide disputants or, at the least, "a situation which [was] likely to give rise to" an interstate industrial dispute, the Court could not have properly found, on the material in evidence, that the Federation had discharged the onus of clearly establishing that such a determination was wrong: see, e.g., Holyman's Case [42] ; Reg. v. Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [43] ; Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [44] . In that regard, it is important to bear in mind that the focus of the closing words of s. 51(XXXV) of the Constitution (i.e. "extending beyond the limits of any one State") is upon "disputes". The qualification contained in those words, which is carried into the Act, is not that the subject-matter of dispute has an intrinsically interstate character. It is merely that the actual or potential dispute or disputes extend beyond the limits of a single State.

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Judgment (76 paragraphs)